I have been writing on this blog about how Dallas County juries have shifted over the years from pro-defense to pro-plaintiff, or at least to a point where most prospective jurors in Dallas County don’t necessarily consider lawsuits a bad thing.  In the era of tort reform, this attitude among prospective jurors in Dallas County is very interesting.  My previous posts are here, here, and here.

But why do we care about juries anyway?  There are the constitutional reasons, and the traditions in our legal system that are tied inextricably to the jury trial process.  There are the defenders of the jury trial as the last line of defense against oppression.  And these are good reasons to care about the juries.

But my focus on why juries matter is more practical.  In Texas, juries matter because once a jury renders a verdict it is extraordinarily rare for the jury’s verdict to be overturned.  It happens, but not very often.  This is because legal and factual sufficiency challenges to a jury verdict are judged against very high standards.

The Dallas Court of Appeals just released a decision in Adams v. Bellas affirming a jury verdict where the court went through the standards for legal and factual sufficiency challenges to a jury verdict.

To overturn a jury verdict on legal sufficiency grounds, the court must first credit any evidence favoring the jury verdict if reasonable jurors could disregard contrary evidence if reasonable jurors could not.  If more than a scintilla of evidence supports the jury’s verdict, then the court has to uphold the verdict.  There is no weighing of the evidence on one side or the other.  The court simply looks at whether there is some evidence that would “enable reasonable and fair-minded people to reach the verdict under review.”

To overturn a jury verdict on factual sufficiency grounds, the jury’s verdict must be against the great weigh and preponderance of the evidence.  This means that the jury verdict will be set aside “only if it is so contrary to the overwhelming weigh of the evidence as to be clearly wrong and manifestly unjust.”

Taken together, the high standards for legal and factual sufficiency protect the philosophical value that we place on the role of the jury in our legal system. We have assigned the jury the role of weighing the evidence and resolving any conflicts or inconsistencies in the evidence.  We then shield the jury’s verdict from second-guessing by creating high standards for overturning the jury’s verdict.

So why do juries matter?  Because under our system, once the jury delivers its verdict it is procedurally and practically very difficult to overturn the verdict.  Oh, and also for all those constitutional reasons and tightly-held traditions long associated with our legal system.

Contracts are important and “the devil is in the details.” Too often I see business owners and experienced entrepreneurs come to me as first time clients with a serious problem. But when we go to review the contract that is at the heart of the issue, I often find that the contract was not professionally drafted, does not address many issues that should have been addressed or simply does not make sense in the context of the transaction.

Unfortunately, once a problem arises, it is almost always after the ink is dry and the writing is on the wall so to speak. In short, you’re stuck trying to enforce, or defending against, a contract that simply does not say what your new client thought that it said.

I recently had a new client come to me with a problem. He had invested hundreds of thousands of dollars into the purchase of a business. This client is an experienced entrepreneur with numerous successful business ventures. However, he did not have an attorney review the purchase documents prior to closing. The client sheepishly admitted that it was because he thought he would save himself some money in legal fees. In short, after the deal closed, the client learned that the business he had purchased was not worth even close to what he had invested in it.

While not a handshake deal, my client had trusted the people that he was dealing with to be forthcoming and truthful. Unfortunately, that was simply not the case. To add insult to injury, the contract documents were extremely vague and one sided in favor of the seller—not my client.

In this situation, if the client had invested roughly $3,000-5,000.00 in legal fees on the front end, it could have saved him hundreds of thousands of dollars. Unfortunately, this client’s story is not unique. Many investors and entrepreneurs avoid hiring an attorney to review their agreements related to their business transactions to save time and money. Similarly, many businesses are working with old outdated contracts.

If you are entering into a new business venture, or contract of any kind, have an attorney review the documents. A small investment now may save you a great deal of time, money and heartache later.


Copyright: squarelogo / 123RF Stock Photo
Copyright: squarelogo / 123RF Stock Photo

Election 2016

Marijuana ballot initiatives won big on election night 2016.  As recently reported in the Washington Post, voters in California, Massachusetts and Nevada approved recreational marijuana initiatives.  And, voters in Florida, North Dakota and Arkansas just approved new medical marijuana initiatives. Washington Post Article

Texas-84th Legislative Session

What is not as well known is that medical marijuana came to Texas in the last legislative session-in a small way.

As noted by the Marijuana Policy Project, the 84th Texas legislative session included five bills which would have reduced penalties for possession of marijuana (including one which would have made access for consenting adults completely legal.)  None of those bills made it out of committee and to a vote.  However, there were also four medical marijuana bills, one of which became law in Texas-the Compassionate Use Act.  Summary of Texas Bills

The Lawyer’s Dilemma

When the dust settles on the 2016 election, more than twenty percent of Americans will now live in states where recreational marijuana use is legal, and it now appears that 29 states will allow cannabis use for certain medical conditions-including Texas. See Fox Rothschild eBook summary of state-by-state marijuana laws

However, marijuana remains a schedule I drug, along with heroin, and possession or distribution remains a serious felony under federal law.

The professional rules of conduct in most states, including Texas, prevent an attorney from counseling a client to engage, or assist a client, in conduct the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.  How can an attorney counsel a client in the cannabis business under these conditions?

How are state bars and legislators dealing with the potential conflict in the law and ethical rules when cannabis has been made legal in a particular state?

The short answer is they are changing their professional rules of conduct in most cases.  My partner,  Joshua Horn recently wrote an excellent post on this topic-which you can find here- Post

A recent Gallup poll found that sixty percent of Americans are now in favor of legalization of cannabis use.  Gallup Poll

As Texas inevitably begins to cope with the realities of the inherent conflict between the existing state and federal laws in this area, and the trap posed by the rules of ethics, it will prove interesting to see how the Texas bar deals with this dilemma for Texas lawyers.

Copyright: alexmillos / 123RF Stock Photographic icon
Copyright: alexmillos / 123RF Stock Photographic icon




48Copyright: nexusplexus / 123RF Stock Photo245026 - dollar banknote ship sinking in clear blue water
48Copyright: nexusplexus / 123RF Stock Photo245026

Loose lips sink ships!

The Texas Fifth Court of Appeals at Dallas recently held that a settlement party’s loose talk about settlement terms violated the confidentiality provision of a settlement agreement and excused the other party from making the remaining settlement payments. Opinion

The case was recently featured in the Texas Lawyer. See Texas Lawyer

In ruling, the Court accepted the argument that the settlement agreement recited that the confidentiality provision was a material term of the contract.

My partner, Brett Myers has written a recent blog post featuring the importance to the Court of the recitation of materiality of the confidentiality term in the settlement agreement in this case.  Blog Post

But, the larger point? In Texas-contracts mean what they say.

If you sign a settlement agreement that states that its terms are confidential-keep your mouth shut!

Copyright: vladimirfloyd / 123RF Stock Photogesture
Copyright: vladimirfloyd / 123RF Stock Photogesture

As most people who know me know, I am a registered pharmacist in addition to being a lawyer. After graduating from the University of Rhode Island College of Pharmacy in December 1992, and passing the Rhode Island pharmacist licensure exam in February 1993, I practiced pharmacy in various settings until graduating SMU’s Dedman School of Law in May 2003.

As part of the continuing education for my pharmacist license, I recently went to a continuing education seminar presented by the Institute for Brain Potential in which Martin M. Antony, PhD was the speaker.

During the presentation, Dr. Antony said that numerous studies point to poor communications by health care professionals as the most common factor leading to malpractice claims.

39054530 - portrait of cheerful female pharmacist chemist woman in pharmacy drugstore
Copyright: kadmy / 123RF Stock Photo

According to Dr. Antony, it is not a mistake that generally leads to a lawsuit; rather, it is poor communication after the mistake. The examples Dr. Antony gave were things such as health care providers avoiding his or her patient’s calls after the mistake because they know the patient is angry, failing to admit the mistake, and failing to say “I am sorry.”

The failure to apologize is an interesting point. Many lawyers advise their clients that in any in any situation, whether it is a car accident or a mistake in a health care setting, not to apologize and not to admit to anything, especially not fault.

While this advice certainly is applicable in many situations. The criminal context immediately comes to mind. But if a verifiable mistake is made in a health care setting, then there may be other strategies to consider.

The purpose of this blog post is not to give legal advice, and certainly is not to come up with a strategy for dealing with a pharmacist, physician or hospital mistake in less than 500 words. Rather, it is to suggest that health care providers should have a plan in place for dealing with mistakes prior to the issue getting to litigation, and to highlight that patient communication may be an integral part of that plan.

logo-colorI have been defending pharmacists against a multitude of claims for my entire thirteen years of law practice.  Many at Fox Rothschild have been doing it much longer.  We can help you come up with a plan for dealing with health care liability claims and/or mistakes.

My father recently sent me a N.Y. Times article describing how the game of professional hockey and the NHL have changed in the last twenty years.  According to veteran sports writer Dave Caldwell, the NHL has changed from a game that was equal parts speed and obstruction/fighting to a game that primarily is about speed and finesse.  Fighting and hard hits still have a role in the NHL, but according to the stats compiled by Caldwell, as well as the players interviewed, the roles of fighting and “enforcers” are greatly reduced in today’s game.

44532438 - ice hockey player on the ice, outdoors
Copyright: yuran-78 / 123RF Stock Photo

Being from Brooklyn, NY, and having spent the first twenty-seven years of my life in New York, New Jersey, Rhode Island, and Boston, I have always been a hockey fan.  I still love hard hits and checks.  When I go to a Dallas Stars game, part of me still yearns for the “good old days” of hockey when N.Y. Islanders goalie Billy Smith seemingly would slash a player just for skating by his crease.  But even I, as an old school hockey fan, am forced to admit that the truly great hockey players of years past, such as Wayne Gretzsky, and of today, such as Jamie Benn, are skill, speed, and finesse guys, not brawlers.

This got me thinking – can the same be said for the practice of law?  Practicing law is a second career for me, so I usually have to rely upon folks older than me (in lawyers years, but not necessarily in years on this planet) to hear about the “good old days” of law practice before the Texas Rules of Civil Procedure were changed in 1999.  According to a paper co-authored by Texas Supreme Court Chief Justice Nathan Hecht, the rule changes were enacted to simultaneously allow more pre-trial discovery and put limits on discovery, and virtually eliminate trial by ambush in the much same way as the NHL largely has eliminated fighting.

Aren’t the truly great lawyers of today also skill and finesse people, as opposed to brawlers?  I cringe when I hear lawyers talk about times when a case was overstaffed with a team of associates to flood the other side with motion after motion, discovery request after discovery request, and letter after letter, to attempt to beat the other side into submission (the 1999 rule changes also addressed this problem and the inequities it caused).

I believe that clients are better served today by having an experienced lawyer properly staff a case to represent her client’s best interests. I also believe that while we lawyers are ethically required to zealously represent our clients, we can do so in an efficient, nimble, and strategic manner.  And the practice of law is continuing to evolve in line with this trend, with the recent changes to the Federal Rules of Civil Procedure now requiring all discovery sought to be proportional to the needs of the case.

A lawyer can be both strong and respectful – in fact, in my opinion, respect is a sign of strength.  So, yes, in law, as in hockey, there still is a place for the occasional brawl.  However, these are the exceptions, not the rule.

Copyright: macor / 123RF Stock Photo
Copyright: macor / 123RF Stock Photo

Before becoming a lawyer, I spent a couple of years working in media relations for a university athletic department. For those who don’t know, the media relations team is essentially the PR wing of the sports organization.

At the time, Twitter was coming onto the scene as a popular tool in the realm of sports media. Universities and professional sports organizations were using it to promote their athletes for national awards, fans were using it to consume information about their favorite teams, and writers were using it as a way to promote their columns and feature stories.

Twitter became the fastest and most convenient way to consume information. Except, it terrified—and continues to terrify—the media relations professionals whose job it is to control the message coming out of their sports organization.

I will never forget one of my mentors in media relations telling an athlete, after a particularly embarrassing tweet that garnered substantial media coverage: “Every time you send a tweet, pretend you are giving an interview on ESPN. Then re-read the tweet, and decide whether you want to send it.”

That particular lesson has stuck with me ever since then, and I think it applies equally for attorneys. Many of today’s lawyers, especially “millennials” like myself, use Twitter and other social media as a way to market themselves and their firms. Intermingled in those professional tweets are often the person’s (likely unsolicited) personal opinions.

Lawyers should think the same way as media relations professionals. Every time you send a tweet, pretend you are giving an interview with the national media. By sending that tweet you are potentially representing your firm and your clients to an unlimited audience. Unfortunately, many people in this profession have learned this lesson the hard way.

So, lawyers. Before you hit the “Tweet” button, remember: you are giving an interview to a potentially international audience, whether you realize it or not. That interview could provide a fantastic marketing opportunity for you and your firm, but it could also cause you to lose a client, your case, or even your job.

Communications between an attorney and client are privileged, right?  As iron-clad as we think the attorney-client privilege may be, there are limits.

Ian Meklinsky at Fox Rothschild LLP shared an interesting case with me this morning where a federal judge in New Hampshire ordered the production of the reports prepared by outside counsel following an investigation of  conducted by outside counsel.  The case involved Phillips Exeter Academy and allegations of sexual assault.  Phillips Exeter’s retained outside counsel hired another lawyer to investigate the allegations.  As part of the investigation, the attorney interviewed witnesses, reviewed documents and prepared two reports for Phillips Exeter and its retained outside counsel.  In discovery Phillips Exeter asserted that the results of the investigation were attorney client privileged.

The court ordered production of the reports because the outside counsel’s reports consisted of factual findings acquired from three witnesses interviewed by outside counsel.  According to the court, facts and statements by third parties are not attorney client privileged.

The attorney client privilege only covers communications for the purpose or rendering legal advice.  The court also questioned whether the reports from outside counsel constituted legal advice or whether the reports contained information to assist Phillips Exeter  make a business decision.  The court focused on the character and content of the reports, and concluded that the information in the reports consisted of information to assist Phillips Exeter on whether to discipline a student accused of sexual assault.  According to the court, the information was akin to providing information to help the client make a business decision, and communications to facilitate a business decision are not the same as legal advice.

Finally, it appears that the court was going to require Phillips Exeter to produce the reports no matter what.  The court concluded by stating that even if Phillips Exeter or its retained counsel hired outside counsel to render legal advice, and the information in the reports constituted legal advice, Phillips Exeter waived any claim of attorney client privilege regarding the reports by putting the contents of the reports at issue in the litigation and by sharing portions of the reports with third parties.

Clients regularly hire outside counsel to conduct investigations, assuming that the results of the investigations will be attorney-client privileged.  The implications of the New Hampshire court’s ruling could be huge in any situation where a party attempts to shield the results of an investigation by hiring outside counsel because the court’s distinction between advice to assist the client in making a business decision and rendering legal advice seems hazy and arbitrary.  Additionally, the court’s decision that Phillips Exeter put the contents of the report at issue in the case is problematic in every case where there is an investigation into allegations that end up in litigation.

Baseball is at its greatest in October.  In baseball, statistics rule.  People analyze stats to predict the future.  Just about everyone accepts that a hitter is valued by the hitter’s batting average.  A hitter’s batting average is the number of hits divided by the number of at-bats. That’s easy enough, but it gets a little complicated when you are characterizing at-bats vs. plate appearances, because not every plate appearance is an at-bat.  Stat guru Bill James in the 1980s came up with sabermetrics to scientifically determine why teams win and lose.  James put forth the proposition that batting average was not the best valuator of a hitter, and that another stat, OPS, better reflects the hitter’s value to the team.  OPS is the sum of the hitter’s on base percentage and slugging average.  I could write a whole lot more on these two components, but the point is that while we may quibble with which stats to use, in baseball stats define a player’s value.

And that got me to thinking.  How do you value an attorney’s performance?  Yes, there are of course billable hours, hourly rates, and originations.  But maybe billable hours, hourly rates, and originations are the equivalent of batting averages.  And I would go further and say that billable hours, hourly rates, and originations only show the value of the lawyer to her law firm.  Can we come up with a stat that shows the lawyer’s value to the client?

I believe that the value of a lawyer to the client is based on two components.  First, how experienced is the lawyer?  Specifically, how many matters like the present matter has the lawyer handled before?  How many matters has the lawyer handled against the same opposing counsel before?  There is no substitute for experience, and having handled multiple similar matters gives the lawyer insights into how the present matter will progress.  The lawyer can use lessons learned from previous matters to advise the client about how to bring the current matter to a resolution.

The second component is cost.  How much will it cost the client to have the attorney handle the matter?   An attorney can boast about an unbeaten streak of trial victories, but the win streak takes a back seat if the cost to take a case to trial far exceeds the financial constraints of the case.  The lawyer’s experience should come into play with cost, because the more experienced an attorney is at a particular type of matter, the more efficient the attorney should be at handling a particular type of matter.   If the Y axis is cost and the X axis is number of similar matters, then over time the graph would flatten out as the attorney gains more experience handling similar matters.

So the client is right to ask “How many matters have you handled, and how much will it cost me?”  A lawyer becomes valuable to the client when the lawyer can answer these questions up front and based on the lawyer’s past experiences.


13521037 - plane seats

The other day it struck me that airline seats are getting smaller, especially the middle seat.  On that certain low-fare airline that provides frequent service between Dallas, Houston, Austin, and San Antonio, I long ago decided that a middle seat in the front is better than an aisle or window seat in the rear. On a recent trip from Dallas to Houston I noticed that there are a lot of business travelers who work on the plane, in full view of everyone around them.  There’s always bound to be a couple of spreadsheets opened on a laptop or two, and one time on an international flight I shared a row with a passenger who was working on a complex physics presentation.  I am not admitting to snooping, but sometimes a flight can get pretty boring, and sometimes wandering eyes will, well, wander.

This got me thinking about the middle seat in a different light.  There’s really no way to work in the middle seat on a client’s case and not have the passenger on either side be able to see what you’re working on.  So is working while sitting in the middle seat, or any seat where others may peek at what you are doing, an ethical concern?  Rule 1.05 of the Texas Disciplinary Rules of Professional Conduct says that “a lawyer shall not knowingly” reveal confidential information of a client to “anyone else . . ..”  Ever since the first week of criminal law in the first year of law school, I see “knowingly” and think something greater than “inadvertently” or “negligently.”  So Rule 1.05 seems to say that I am okay working on a client’s case in the middle seat of an airplane, unless I know that my nosey neighbors are peeking over my shoulders.  But here’s the thing:  if I am curious about what other people are working on, is that enough to give me knowledge that other people are curious about what I am working on?  Or do I underestimate how truly uninteresting other people may find my work?

And then maybe whether I can work on a client’s case while sitting on a cramped airplane depends on what kind of case I am working on for the client.  Rule 1.05 would cover most of the business disputes, but HIPAA comes into play when the information is “Protected Health Information.”  HIPAA’s Privacy Rule protects all “individually identifiable health information” held or transmitted by a covered entity or its business associate, in any form or media, whether electronic, paper, or oral.  HIPAA’s procedures are designed to protect from the use or disclosure of Protected Health Information, and a covered entity must obtain the individual’s written authorization for any use or disclosure of Protected Health Information that is not otherwise permitted by the Privacy Rule.  Under HIPAA, a covered entity must maintain reasonable and appropriate administrative, technical, and physical safeguards to prevent intentional or unintentional use or disclosure of Protected Health Information.  Whereas Rule 1.05 requires that I not knowingly reveal confidential information, HIPAA requires a covered entity to protect against unintentional disclosures of Protected Health Information.  Does this mean that I have to approach working on a business  case on an airplane differently than I have to approach working on a personal injury case where I will be reviewing medical records?  Maybe.  Probably.